Appeals upholds EPA authority over emissions

An appeals court on Thursday denied a request from industry groups to rehear a case in which the court upheld the Environmental Protection Agency’s climate change regulations.

The industry challenge failed to win a majority vote by judges on the U.S. Court of Appeals for the D.C. Circuit for an en banc (before the entire bench) rehearing of Coalition for Responsible Regulation v. EPA, which sought to challenge the EPA’s power to address greenhouse gas emissions.

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In their dissenting opinions, Judges Brett Kavanaugh and Janice Rogers Brown attacked the majority decision with flourish, detailing grievances with this summer’s ruling. And like the original opinion, one judge again cited a Schoolhouse Rock song, this time turning to “Three Ring Government.”

In June, the court deemed the EPA “unambiguously correct” in the legal reasoning behind its regulation of greenhouse gases. A three-judge panel issued a sweeping opinion strenuously backing the agency’s finding that emissions pose a danger to public health and welfare, and upheld several subsequent regulations for vehicles and new industrial plants.

In Thursday’s order, Chief Justice David Sentelle, along with Justices Judith Rogers and David Tatel, defended their decision in the case and said the policies are “undoubtedly matters of exceptional importance.”

In turning back the petition for rehearing filed by the U.S. Chamber of Commerce, the State of Alaska, Peabody Energy, Southeastern Legal Foundation, the National Association of Manufacturers and others, the court said the legal issues were straightforward.

“Here, Congress spoke clearly, EPA fulfilled its statutory responsibilities, and the panel, playing its limited role, gave effect to the statute’s plain meaning,” the three judges wrote.

But Brown found fault with the decision to allow EPA’s so-called endangerment finding stand, arguing that it was against the intent of Congress.

Brown recounted in her dissent how as a young student in 1974, she was stunned after a month of house-sitting in Pasadena, Calif., to see the San Gabriel Mountains suddenly become visible one morning just a short distance away.

“In those days, the air in the Los Angeles basin was so thick with smog that a mountain, or even a nearby mountain range, could simply disappear,” she wrote.

Although that type of air pollution eventually helped lead to the Clean Air Act, Brown argued that “Congress never intended the act to serve as an environmental cure-all.”

“The real absurdity — apparently as invisible to the EPA as the San Gabriels once were to me — cannot be cured by phase in, no matter how subtly byzantine,” the judge said, referring to EPA’s “tailoring rule” that will gradually increase greenhouse gas controls to avoid dramatic and sudden change in regulation.

Brown warned that the EPA’s push to regulate the emissions “may very well do more damage to the well-being of Americans than GHGs could ever do.”

Sentelle, Rogers and Tatel noted that Brown’s issue is not with their decision but with the Supreme Court’s landmark 2007 ruling in Massachusetts v. EPA, in which the court agreed that greenhouse gases could be considered pollutants under the Clean Air Act.

Brown urged the court to rehear the case based on EPA’s effort to extend its reach on the emissions to other state regulatory regimes as well as to challenge the Supreme Court’s decision in Massachusetts.

“Bound as I am by Massachusetts, I reluctantly concur with the Panel’s determination that EPA may regulate GHGs in tailpipe emissions. But I do not choose to go quietly,” she wrote.

Brown argued that Congress rejected proposals to regulate greenhouse gases when crafting the 1990 Clean Air Act amendments and that EPA should not have the power to steamroll through congressional gridlock on the issue.

Brown’s dissent adds: “We need not follow Massachusetts off the proverbial cliff and apply its reasoning to the unique Title V and PSD provisions not considered in that case.”

The concern about the so-called prevention of significant deterioration permitting program — and the effects of EPA regulating greenhouse gases — was echoed by Kavanaugh in his dissent, in which he disagreed with the panel’s interpretation of “any air pollutant” with respect to the PSD program.